Opinions Sun, 31 Jul 2016

The Montie FM case: Helping the media avoid legal prosecutions

By George Sydney Abugri

The conviction and imprisonment of two radio talk show panellists this week for contempt, has no doubt driven forcefully home to the country’s media, the ever present threat of legal infractions in the exercise of freedom of speech and expression.

NDC communicators, Alistair Nelson and Godwin Ako Gunn in the course of a radio panel discussion on Montie FM recently, threatened to kill some justices of the Supreme Court if they ruled against the Electoral Commission in the legal dispute over the voters’ register were. The two and the programme were found guilty of contempt of the Supreme Court by the same court, and sentenced to four months imprisonment each.

They were also fined GHc 1, 000 each. The same sentences were slapped on the host of the programme, Salifu Masse alias Mugabe. The sentencing of the three has since been meant with protests from NDC activists and demands for the release of the trio.

The conviction and hefty total fine of GHc 60, 000 slapped on Montie FM owner, Mr Harry Zakour, and three directors of the station, Ato Ahwoi, Edward Addo and Kwesi Kyei Atuah, has also turned upside down, the popular assumption that media owners can hide behind the anonymity of their investment in the media and let agents and activists of various sectarian groups, use their media as platforms for the pursuit of partisan interests that work counter to other interests in society.

The contempt case also emphasises a warning some radio and television talk-show hosts tend to constantly ignore: Merely stating that a talk show or other programme host does not share, or dissociates himself/herself from comments made by discussants on a programme he/she moderates, does not absolve the host from liability for contempt.

Since in spite of such their infractions and other shortcomings, the media have a critical role to play in the advancement of democracy, the Monti case points to the need for communication industry training institutions and organizations to take steps to guide the media away from the legal traps.

Most countries' laws on the media exist not to inhibit media freedom, but to protect the rights and welfare of citizens and institutions of state of every country.

In order to do this, media freedoms have to be subjected to some formalities, conditions, restrictions or penalties prescribed by law.

This is done in the interests of democracy, national security, public safety and the protection of the health and morals of citizens of every country.

Other reasons for subjecting media freedom to restrictions include the prevention of crime, the protection of the rights and freedoms of others, preventing the disclosure of lawfully confidential information, and maintaining the authority and impartiality of every country's judiciary.

While studying media law will not make lawyers of journalists, knowledge of media law will guide journalists away from the numerous legal land mines which infest the rugged terrain along which the media operate.

The study of media law in the training of journalists is intended to introduce journalists to areas of the law, which deal with these restrictions, formalities, conditions and penalties, as well as other legal concerns relevant to their work of gathering and publishing information.

On the basis of the preceding arguments, it may be concluded that journalists who insist on operating outside these clearly defined boundaries of the law are, in effect, demanding that they be allowed to operate outside the rule of law.

Some of the legally risk-prone areas of the law which students of media law are introduced to are those areas related to defamation, libel, contempt of court, the rights of citizens under the law, coverage of issues involving minors, family issues, state secrets, property or copyright, and sexual offences.

British laws and indeed the laws of most countries guarantee full anonymity to complainants in sexual offence cases: Legal restriction on identifying complainants or victims in rape cases states that "once an allegation of rape has been made, the victim's name, address, workplace, school or educational establishment, or picture, must NOT be published in his or her life-time, if it is likely to identify him or her."

In cases of sexual intercourse with a mentally handicapped person, indecent assault of children, incest by a man or woman, the law guarantees the same anonymity for the victims. Anonymity for the complainant or victim remains in force "even if the allegation is later, withdrawn".

The restriction on identifying victims of sexual offences and coverage of issues related to the rights of individuals was the subject of a recent dispute between the Daily Guide newspaper and the National Media Commission (NMC).

Media law provides journalists with various possible defences where they breach the restrictions on identifying victims of rape. One key defence which journalists and editors can argue in their defence is that at the time of the publication, the news medium did not know that the matter that breached the restriction was included in its story.

A second defence could be that a witness or victim of rape was identified, to show that the journalists had no reason to suspect that the necessary criminal investigation had begun.

Other leading legal risks which a study of media law helps journalists to guard against relate to defamation and its two generic variants, libel and slander. Where the defamation is in writing or in some other permanent form, it is a libel. Where it is spoken or in some other temporary form, it is slander.

Media law assures journalists that to be able to successfully bring a claim of defamation against a journalist or news organisation, an aggrieved individual must prove that the news medium and/or journalist against whom the claim is brought did indeed publish defamatory material about the claimant.

For the sake of doubt, a "publication" is defined as the communicating of an allegation to another person or persons. Thus communicating an allegation to one person, as in the case of a letter, or to millions of people, as in the case of a newspaper, is a publication. It makes no difference in law, whether the medium in which the allegation is published is electronic or print.

A defamatory allegation is defined as an allegation that tends to make right-thinking people think the worst of the claimant, and that would lead people to avoiding the claimant or exposing the claimant to ridicule.

Media law makes journalists aware that in a defamatory publication, an unnamed claimant who can be identified by other means as the target of the defamatory allegation made in the publication will be able to sue.

Any person who shares the same name as the intended target of the publication can also sue!

Reporters are advised to use the almighty alibi "allegedly". They are, however, also warned that the word "allegedly" does not protect a journalist or medium sued for defamation, although it might help the defendants' case in court.

Then there is the legal trap of contempt which refers particularly to conduct that insults, defies or disrespects the constitutionally-mandated authority and dignity of any court of law.

Contempt may be civil or criminal. Civil contempt seeks to compel the offender to carry out a court order the offender refused to carry out. Criminal contempt seeks to punish the offender for his conduct to serve as a deterrent to individuals who may be inclined to disrespect the authority of the court.

Criminal contempt is the trap journalists and other media people and public commentators are most likely to fall into. Whether it be in a case of civil or criminal contempt, the offender may be incarcerated by the judge. It is also the judge who decides what type of contempt to cite an offender for.

Contempt offences fall under two categories: An act of contempt committed inside the court room or “in the face of the court” as lawyers put it, is referred to as “contempt in facie.”

Where an offense of contempt is committed outside the courtroom or precincts of the court, it is referred to as “contempt ex-facie.”

Contempt includes any word spoken or any act done in the courtroom or within the precincts of, the court, which obstructs or interferes with the administration of justice or is calculated so to achieve that purpose.

Such acts include assaults committed in court; insults to the court; interruption of court proceedings; and refusal on the part of a witness to be sworn or, having been sworn, refusal to answer questions by the judge or prosecutors.
Columnist: Abugri, George Sydney